2 judges in 2 states in 2 days say Trump wrong to redirect funds to border wall

President Trump tours border wall prototypes near the Otay Mesa Port of Entry in San Diego County in March 2018.

Photo: K.C. Alfred / San Diego Union-Tribune 2018

President Trump’s order to redirect $3.6 billion in military funds to build 175 miles of border wall in California and three other states was an unconstitutional defiance of Congress, a Bay Area federal judge said Wednesday — the second judge in two days to rule against the wall funding.

Trump has vowed to “proceed with the construction by any means necessary, notwithstanding Congress’ contrary exercise of its constitutionally absolute power of the purse,” said U.S. District Judge Haywood Gilliam of Oakland.

On Tuesday, U.S. District Judge David Briones of El Paso, Texas, ordered a halt to spending on the same wall segments in California, Arizona, New Mexico and Texas. Like Gilliam, he noted that Congress had approved only $1.375 billion for limited barrier construction, a vote that prompted Trump to shut down many federal government operations for a record 35 days, starting last Dec. 22. Trump then declared a state of emergency and ordered additional funding.

Neither order affects a separate cache of $2.5 billion in federal counter-drug funds that Trump also diverted to wall-building at the southern borders of California, Arizona and New Mexico. Gilliam and other federal judges also blocked that funding, but the Supreme Court, in a 5-4 decision in July, allowed it to resume while the cases proceeded in lower courts.

While declaring the $3.6 billion funding order invalid as well, Gilliam said in Wednesday’s decision that a majority of the Supreme Court apparently had concluded that “the challenged construction should be permitted to proceed pending resolution” of the case. He then put his ruling on hold while the Trump administration challenges it at the Ninth U.S. Circuit Court of Appeals.

More by Bob Egelko

That procedural order has no immediate effect, because Briones has already blocked the same funding. But funding would resume if Briones’ order is stayed by the Fifth U.S. Circuit Court of Appeals in New Orleans, one of the nation’s more conservative appellate panels. The lead attorney for the plaintiffs in Gilliam’s court, Dror Ladin of the American Civil Liberties Union, said he would ask the Ninth Circuit to let Gilliam’s ruling take effect immediately.

“By putting an end to the president’s power grab, this ruling protects our democracy’s separation of powers, the environment and border communities,” Ladin said.

The case by environmental and immigrant advocates was joined by California and other states. California Attorney General Xavier Becerra said Gilliam had sent “a strong message to the White House: You are not above the law.”

The Trump administration said it would appeal both rulings.

“The Supreme Court has already stayed one erroneous injunction blocking the use of a different statutory authority to build the border wall and the administration plans to immediately appeal this incorrect decision, too,” the White House said in a statement.

In defending Trump’s order, the administration cited a federal law allowing the Defense Department to redirect funds that Congress had approved for other projects during a national emergency when additional “military construction projects” are “necessary to support ... use of the armed forces.” Justice Department lawyers argued that the wall would ease the burden on troops already assigned to border areas.

But Gilliam said the wall is not a “military construction project” and there is no evidence that it is necessary for the armed forces.

By the government’s own description, he said, the proposed border barriers are intended to support immigration enforcement by the Department of Homeland Security, “a civilian agency rather than the armed forces.”

Under the Trump administration’s argument, Gilliam said, “any construction could be converted into military construction ... simply by sending armed forces temporarily to provide logistical support to a civilian agency during construction.”

Bob Egelko has been a reporter since June 1970. He spent 30 years with the Associated Press, covering news, politics and occasionally sports in Los Angeles, San Diego and Sacramento, and legal affairs in San Francisco from 1984 onward. He worked for the San Francisco Examiner for five months in 2000, then joined The Chronicle in November 2000.

His beat includes state and federal courts in California, the Supreme Court and the State Bar. He has a law degree from McGeorge School of Law in Sacramento and is a member of the bar. Coverage has included the passage of Proposition 13 in 1978, the appointment of Rose Bird to the state Supreme Court and her removal by the voters, the death penalty in California and the battles over gay rights and same-sex marriage.